B.O.M Kisian Primary School & 10 others v Kenya Railways Corporation (Suing for Themselves and on Behalf of the Entire Korando Community that are Affected by the Unlawful Act of the Defendants in terms of Encroachment on Private Lands and Blocking of Mason-Ogendo, Kisian-AIC Church Road, Orongo-Orao Kisian River Road, Alai Road and Asindi Road); Kenya Rural Roads Authority & another (Interested Parties) (Environment & Land Case E031 of 2023) [2024] KEELC 3793 (KLR)

The court noted the Defendant had already begun fencing the plaintiffs' land and public roads before any notice could issue. Requiring 30 days' notice in such circumstances would be an impediment to access to justice guaranteed by Article 48. Relying on Joseph Nyaramba and Catherine Njeri Majana, the court held the omission not fatal and dismissed the Preliminary Objection.

Applying Giella v Cassman Brown, the court found it not denied that the plaintiffs hold title to the land being fenced and that the fencing blocks long-used roads of access. The defendant did not deny the acts but justified them. With competing surveyors' reports and disputed root of the defendant's lease, preservation of the status quo ante pending trial was the just course.

The Defendant argued that section 5 of the Act mandates agreement of damages and appointment of a single arbitrator by the Chief Justice, invoking the exhaustion doctrine, and that section 83(1) bars suits for damages arising from execution of its statutory mandate. The applicants countered that the subject matter is private land. The court dismissed the objection without singling out these grounds, finding it wholly without merit.